Torchin v. Cohen

• Decision Date: 24 October 1941
• Citation: 37 N.E.2d 553,286 N.Y. 544
• Parties: TORCHIN et al. v. COHEN et al., Board of Elections. In re HASKELL.
• Court: New York Court of Appeals Court of Appeals

286 N.Y. 544

37 N.E.2d 553

TORCHIN et al.

v.COHEN et al., Board of Elections.

In re HASKELL.

Court of Appeals of New York.

Oct. 24, 1941.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of Max Torchin and William Stanley Miller against S. Howard Cohen and others, constituting the Board of Elections of the City of New York, for an order directing the board to place of William Stanley Miller upon the official election ballot and voting machine as a candidate of the American Labor Party for the office of Surrogate of Kings County, at the general election to be held on November 4, 1941, and restraining the board from printing the name of any other person upon the voting machine as such candidate, and proceeding in the matter of the petition of Robert H. Haskell for an order directing the board to place his name upon such ballot and voting machine as the candidate of the American Labor Party for the office of Surrogate of Kings County to be voted upon at the election of November 4, 1941, and restraining the board from printing the name of any other person upon the ballot and voting machine as such candidate. From an order of the Appellate Division, entered October 21, 1941, 262 App.Div. 1040, 30 N.Y.S.2d 834, unanimously affirming an order of the court at Special Term, Wilson, J., denying the relief sought in the first proceeding, and granting the relief sought in the second proceeding, Max Torchin and William Stanley Miller, appeal by permission.

Order affirmed in part and reversed in part.

CONWAY, J., LEHMAN, C. J., and LEWIS, LOUGHRAN, and DESMOND, JJ., dissenting in part. Charles H. Kelby and A. David Benjamin, both of New York City, for appellants.

Israel Convisser, Marvin B. Amster, both of Brooklyn, and Louis P. Goldberg, of New York City, for Robert H. Haskell, respondent.

Jackson A. Dykman and E. Ivan Rubenstein, both of Brooklyn, for Francis D. McGarey, respondent.

PER CURIAM.

The county committee of the American Labor Party was elected on September 16, 1941. The Election Law, Consol.Laws, c. 17, provides that ‘a vacancy in a nomination made at a fall primary * * * may be filled by a majority of a quorum of the members of the county committee or committees last elected * * * or by a majority of such other committee as the rules of the party may provide.’ Section 139. The rules of the party provide that all nominations of fill vacancies in nomination for public elective office or to fill vacancies in public elective office which may be made by any party committee within the county shall be made only by the county executive committee. Under the authority conferred by that rule, the executive committee of the county committee, elected in 1940, undertook to fill vacancies. The Election Law provides that members of the county committee ‘shall hold office until the election of their successors.’Section 13. The newly elected county committee is required by the statute to hold an organization meeting within twenty days after their election. Section 15. No organization meeting was called in accordance with the statute or with the rules of the party within the required time.

The rules of the American Labor Party also provide that the officers and standing committees chosen under these rules shall hold office and serve from the time of their selection until their successors are chosen. That rule could not give authority to the executive committee of the old county committee to make nominations after their successors as members of the county committee had been elected. The statute provides otherwise. It follows that the nomination of Robert H. Haskell was invalid. The question remains whether the nomination of William Stanley Miller made at the meeting held pursuant to the order of the court on October 6th, was valid. The Appellate Division modified that order and for the reasons stated in the order of modification we hold that the meeting was invalid and that no nominations which were attempted to be made at that meeting were valid.

The order in so far as it grants the petition of Robert H. Haskell should be reversed.

The order in so far as it affirmed the order denying the petition of Torchin and Miller should be affirmed.

CONWAY, Judge (dissenting in part).

I agree with Judges FINCH and RIPPEY that the meeting of October 6, 1941 was invalid, but it seems to me that the petitioner Haskell was properly named to fill the vacancy caused by the declination of Bagley.

The Election Law, s 139, provides for the filling of vacancies by a majority of a quorum of the members of the county committee or committees last elected in the political subdivision in which such a vacancy occurs or by a majority of such other committee as the rules of the party may provide.

By the rules of the American Labor Party it is provided in Article VII, s 2: ‘All nominations to fill vacancies in nominations for public elective office or to fill vacancies in public elective office which may be made by any Party Committee within the County, shall be made only by the County Executive Committee’. (Emphasis supplied).

Article II, section 4, of the rules provides: ‘The County Committee shall meet within twenty days after its election for the purpose of organization. It shall elect its officers and a County Executive Committee, and transact such business which may come before it.’

Article IV, section 1, of the rules provides: ‘The County Executive Committee shall have the power to act for the full County Committee, but subject to its rules and approval. It shall carry out the resolutions of the County...